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IN THE HIGH COURT OF MADHYA PRADESH
Sheel Nagu, J.
Vijay Kumar and another v. M/s. Shriram Industries, Morena and others
Civil Revision No.50 of 2006 (Gwalior) : against the order dated 20.2.2006 in Civil Suit No.15-A/99, passed by District Judge, Morena; Decided on 30.8.2016.
Held : Both sub-sections of section 69 of the Act prohibit institution of suit unless plaintiff-firm is registered under the Act or plaintiff-partner is a registered partner of the firm.
It is crystal clear that section 69 of the Act prohibits institution of a suit filed by a partnership firm or the partners against a third party (as in the case herein) unless at least two qualified partners represent the plaintiff partnership firm. Qualified partners would means partners whose names are mentioned in the registration certificate of the partnership firm.
In the present case, undoubtedly the second partner Daudayal representing the plaintiff partnership firm was not a qualified partner under the Act inasmuch as his name was not mentioned in the partnership registration certificate. That renders the suit in question to be instituted through sole qualified partner, i.e., Mahila Krishnakumari. Institution of such suit by only one partner runs contrary to the mandatory provisions of section 69(2) of the Act.
In view of above discussions on the factual and legal aspects of the matter, this Court has no hesitation to hold that C.S.No.15-A/1999 (M/s. Shreram Industries v. Firm Shyamsunder and Company), filed by one of the qualified partners, namely, Mahila Krishnakumari was not maintainable. AIR 1989 SC 1769 followed. AIR 1987 Bom. 348 relied on. AIR 1963 MP 37 distinguished.
(2) Civil P.C., 1908 -- O.30 R.1 -- Partnership Act, 1932 -- S.69(2) -- suit filed by partners or partnership firm against another partner or partnership firm -- test of maintainability of suit -- can be tested only on anvil of section 69(2) of Act -- this provision is substantive law relating to partnership firm -- provisions of Order 30 rule 1 are merely procedural -- such provision cannot override substantive special enactment. AIR 1966 SC 135, (1999)7 SCC 76, (1999)9 SCC 620 and (2008)3 SCC 674 referred to. [Para 8
(3) Interpretation of Statutes -- principles of -- provisions of special law and general law -- provisions of special law will prevail upon general law.
Anything contained in the CPC on the issue which is contrary to the provision of the special law, i.e., Partnership Act shall stand superseded and the said enactment will prevail upon general law which is CPC. It is settled principle of law that special enactment prevails upon the general law and also that the law relating to procedure gives way to substantive provisions of law.
(4) Partnership Act, 1932 -- S.69(2) -- Civil P.C., 1908 -- O.30 R.1 -- provisions under both enactment -- no any clash or contradiction between provisions of section 69(2) of Act and Order 30 of CPC. [Para 11
¼1½ Hkkxhnkjh vf/kfu;e] 1932 && /kkjk 69 && QeZ dh vksj ls nks Hkkxhnkjks }kjk okn && dk pykus ;ksX; gksuk && ,d Hkkxhnkj QeZ ds Hkkxhnkj ds :i esa jftLVªhd`r ugh && okn pykus ;ksX; ugha gSA vfHkfu/kkZfjr & vf/kfu;e dh /kkjk 69 dh nksuksa mi/kkjk okn lafLFkr djuk izfrfLk) djrh gS] tc rd fd vf/kfu;e ds v/khu oknh QeZ ;k oknh Hkkxhnkj QeZ ds Hkkxhnkj ds :Ik esa jftLVªd`r u gksaA ;g lqLi"V gS fd vf/kfu;e dh /kkjk 69 Hkkxhnkjh QeZ ;k Hkkxhnkjksa }kjk vU; O;fDRk ds fo:) ¼tSlk fd bl izdj.k esa gS½ izLrqr fd;k x;k okn lafLFkr djuk izfrfl) djrh gS tc rd fd oknh Hkkxhnkj QeZ dk de ls de nks vfgZr Hkkxhnkjks }kjk izfrfuf/kRo u fd;k x;k gksA vfgZr Hkkxhnkjksa ls vfHkizsr gksxk ,sls Hkkxhnkj ftuds Hkkxhnkj QeZ ds jftLVªhd`r izek.k&i= esa mfYyf[kr gSA bl izdj.k esa] fuLlansg oknh Hkkxhnkj QeZ dk izfrfuf/kRo dj jgk f}rh; Hkkxhnkj nkmn;ky vf/kfu;e ds v/khu vfgZr Hkkxhnkj ugha Fkk D;ksafd mldk uke QeZ ds jftLVªhdj.k izek.k&i= esa mfYyf[kr ugha FkkA ;g iz'uxr okn ,dek= vfgZr Hkkxhnkj }kjk lafLFkr fd;k tkuk cuk nsrk gS] vFkkZr~] efgyk d`".kdqekjh dsoy ,d Hkkxhnkj }kjk lafLFkr ,slk okn vf/kfu;e dh /kkjk 69¼2½ ds vkKkid mica/kksa ds izfrdwyu pysxkA ekeys ds fof/kd ,oa rF;kRed igyqvksa ds mi;qZDr foospu ds n`f"Vdks.k ls] bl U;k;ky; dks ;g Bgjkus esa dksbZ f>>d ugha gS fd ,d vfgZr Hkkxhnkj] uker% efgyk d`".kdqekjh }kjk izLrqr fd;k x;k flfoy okn Ø-15&,@1999 ¼es- Jhjke baMLVªht fo- QeZ ';kelqnaj ,aM daiuh½] pykus ;ksX; ugha FkkA , vkb vkj 1989 ,l lh 1769 vuqlfjrA , vkb vkj 1987 ckEcs 348 voyafcrA , vkb vkj 1968 e-iz- 37 fufnZ"VaA ¼iSjk 12 ,oa 13½ ¼2½ flfoy izfØ;k lafgrk] 1908 && vk-30 fu-1 && Hkkxhnkjh vf/kfu;e] 1932 && /kkjk 69¼2½ & Hkkxhnkjksa ;k Hkkxhnkjh QeZ }kjk vU; Hkkxhnkj ;k Hkkxhnkj QeZ ds fo:) izLrqr fd;k x;k okn && okn ds pykus ;ksX; gksus ij[k && dsoy vf/kfu;e dh /kkjk 69¼2½ dh fugkbZ ls ij[kh tk ldrh gS && ;g mica/k Hkkxhnkjh QeZ ds laca/k esa lkjoku~ fof/k gS && vkns'k 30 fu;e 1 ds mica/k ek= izfØ;k lac/kh gS && ,sls mica/k lkjoku~ fo'ks"k vf/kfu;fefr ij vfHkHkkoh ugha gks ldrsA , vkb vkj 1966 ,l lh 135] ¼1999½7 ,l lh lh 76] ¼1999½ 9 ,l lh lh 620 rFkk ¼2008½ 3 ,l lh lh 674 fufnZ"VA ¼iSjk 8 ¼3½ fof/k dk fuoZpu && ds fl)kar && fo'ks"k fof/k vkSj lkekU; fof/k ds mica/k && lkekU; fof/k ij fo'ks"k fof/k ds mica/k vfHkHkkoh gksaxsA flfoy izfØ;k lafgrk esa fdlh fook|d ij of.kZr dqN Hkh tks fo'ks"k fof/k ds mica/kks ds izfrdwy gS] vFkkZr~ Hkkxhnkjh vf/kfu;e vfrf"Br dj nsxk vkSj dfFkr vf/kfu;fefr lkekU; fof/k tks flfoy izfØ;k lafgrk gS ml ij vfHkHkkoh gksxhA fof/k dk ;g lqLFkkfir fl)kar gS fd fo'ks"k fof/k lkekU; fof/k ij vfHkHkkoh gksxh vkSj ;gh Hkh fd izfØ;k laca/kh fof/k lkjoku~ fof/k ij vfHkHkkoh gksxh vkSj ;g Hkh fd izfØ;k lac/kh fof/k lkjoku~ fof/k ds mica/kks dks jkLrk NksM+ nsxkA ¼iSjk 9 ¼4½ Hkkxhnkjh vf/kfu;e] 1932 && /kkjk 69¼2½ && flfoy izfØ;k lafgrk] 1908 && vk-30 fu-1 && nksuks vf/kfu;fefr;ksa ds v/khu mica/k && vf/kfu;e dh /kkjk 69¼2½ vkSj flfoy izfØ;k lafgrk ds vkns'k 30 ds mica/kksa ds chp esa dksbZ la?k"kZ ;k fojks/k ugha gSA ¼iSjk 11
1. The present revision filed under section 115 of the Code of Civil Procedure, assails the interlocutory order dated 20.2.2006 in C.S.No.15-A/99 passed by the District Judge, Morena (M.P.) by which an application seeking dismissal of the suit filed by the plaintiffs partnership firm represented by two partners against a third party on the ground of same being hit by the mandatory provision of section 69(2) of the Indian Partnership Act, 1932 (in short the Act), has been rejected.
2. Learned counsel for the rival parties are heard.
3. Brief facts giving rise to the present dispute are that the partnership firm in the name and style of M/s. Shriram Industries represented through Mahila Krishnakumari and Daudayal, instituted a suit by filing a plaint praying for recovery of amount of Rs.10,66740/- along with interest against another firm, namely, Shyamsunder and Company represented through its partners. During pendency of the suit, at preliminary stage, an application for dismissal of the suit was filed by the defendants contending that the suit being not maintainable under section 69(2) of the Act inasmuch as that the same was though instituted by a registered partnership firm M/s. Shriram Industries but was not represented through two partners both of whose names find place in the register of partnership maintained by the Registrar of Partnership under the Act. It was though admitted that Mahila Krishnakumari was a partner of the plaintiffs-firm, who is a registered partner but objection was raised in regard to name of Daudayal s/o Shri Kanhaiyalal who was mentioned as one of the partners representing the plaintiffs/firm. It was submitted that Daudayal was inducted as partner in place of his deceased-father Kanhaiyalal. However, name of Daudayal was not mentioned in the registration certificate of plaintiff partnership firm. In this factual background, the defendants placing reliance on the provisions of section 69(2) of the Partnership Act read with Order XXX of CPC sought dismissal of the suit represented by only one registered partner, as not maintainable.
4. The trial Court while holding the suit to be maintainable has held that provisions of section 69(2) of the Act come into play only when a new partner is inducted without his name being mentioned in the registration certificate and not in the situation prevailing herein where the son of the erstwhile registered partner had merely replaced his deceased father who was a registered partner. In respect of the objection pertaining to provisions of Order XXX rule 2 of CPC, the trial Court held that the suit can survive even if one of the registered partners arrayed in the plaint, representing the plaintiff partnership firm signs and verifies the plaint.
5. The undisputed facts in the present case are that :
(i) The suit in question was instituted by a registered partnership firm represented through two persons namely, Mahila Krishnakumari, who indisputably was a registered partner and Daudayal who was though admitted as a partner but his name did not figure in the registration certificate.
(ii) The plaint appears to have been singed and verified by both the said partners.
6. For resolving the controversy, the relevant statutory provisions deserve to be reproduced below :
“69. Effect of non-registration. -- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the register of firms as partners in the firm.
Order XXX rule 1 CPC :
1. “Suing of partners in
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